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Chapter 18

Creating powers of search, surveillance and seizure

Part 3

How should the search powers be framed?

New search powers should only be exercisable when there are “reasonable grounds to suspect” the relevant factual situation has occurred, and “reasonable grounds to believe” that evidence will be found, or a particular thing may be achieved during the course of that search.

In the law enforcement context, legislation should set out the thresholds that must be satisfied before a search power is exercised. The default thresholds below are based on the search powers of the police in s 6 of the Act and should apply to any new search powers:

there are “reasonable grounds to suspect” the relevant factual situation has occurred (such as a criminal offence); and

there are “reasonable grounds to believe” that evidence will be found, or a particular thing might be achieved, during the course of the search (a common example is finding evidence relating to a criminal offence).

Compelling reasons must exist for relying on different thresholds in a law enforcement context (such as a suspicion that the person is carrying a dangerous item, or may otherwise pose a serious and imminent threat to themselves or other people).

In the regulatory context, suspicion of a breach is not always necessary for search or inspection powers to be exercised. However the power must still be justified (for instance, a search or inspection power is required to monitor compliance with legislation). Even so, those powers must only be capable of being exercised for the purpose of monitoring compliance or detecting breaches of the legislation.